EEA nationals not eligible for assistance rules before Brexit

Before 1 January 2021 these rules applied to EEA nationals who were exercising EU free movement rights in the UK.

After 1 January 2021 these eligibility rules continue to apply to EEA nationals who have either:[1]

• pre-settled status granted under the EU Settlement Scheme

• temporary protection, until they receive a decision on their application to the EU Settlement Scheme

The information and footnotes are kept for reference only and will not be updated.

EEA nationals moving to the UK from 1 January 2021 are subject to new eligibility rules.

The categories of persons coming to the UK from abroad who were not eligible for homelessness assistance were set out in the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006.[2]

The following were excluded from receiving housing assistance:

• EEA nationals and their family members who did not have a right to reside in the UK

• EEA nationals with a right to reside in the UK that is specifically excluded from eligibility by the regulations

• British and Irish citizens coming to the UK for the first time, or returning to the UK after a period of absence, who were neither exempt from the habitual residence test nor habitually resident in the Common Travel Area (UK, Republic of Ireland, Channel Islands and Isle of Man)

British and Irish nationals were exempt from the habitual residence test if they had been exercising an EEA treaty right (for example as a worker) in another EEA country.

An EEA national must have had a right to reside in the UK to be eligible for homelessness assistance.[3] However, not all EEA nationals with a right to reside were eligible.

The following categories of EEA nationals with a right to reside were not eligible for homelessness assistance:[4]

• people whose only right to reside was as a jobseeker

• EEA nationals and their family members exercising the three-month initial right to reside

• from 8 November 2012, a non-EEA national who was the primary carer of a dependent British citizen. This is often known as a 'Zambrano' right to reside[5]

• EEA nationals whose only right to reside in the UK was as a student or as a self-sufficient person, if their homelessness application was found to be a breach of their student agreement or self-sufficiency

EEA nationals had a right to move freely between EU Member States to seek employment under Article 45 of the Treaty on the Functioning of the European Union.[6] However, under Article 24(2) of Directive 2004/58/EC (ie the Citizenship Directive), a host Member State was not obliged to confer entitlement to social assistance during the first three months of residence to persons other than workers, self-employed persons, persons who retain such status, and their family members.

The Courts have decided that a EEA jobseeker who had never actually worked in a certain EU country could not acquire a permanent right to reside there, based solely on their jobseeker status. People whose only right to reside was as a jobseeker did not have the same rights to social security assistance provided to other EEA nationals who had retained worker status. Under EU law, a host Member State could not deny jobseekers the right to access benefits intended to facilitate their access to the labour market (for example, jobseekers allowance) but were not obliged to grant them the same benefits and assistance given to people with a qualified or permanent right to reside in order to cover their minimum subsistence costs of living (for example, employment and support allowance paid primarily to former workers or self employed people while they could not work because of a illness or disability).[7]

Definition of jobseeker

A jobseeker was someone who entered the UK to look for work, or who was looking for work in the UK immediately after previously exercising a right to reside as a worker, self-employed person, self-sufficient person or a student, and who could not demonstrate that they had a genuine chance of being engaged in employment.[8]

An EEA national was registered (or treated as registered) as a jobseeker if they claimed:

• jobseeker's allowance and was registered as actively seeking work at a Jobcentre Plus

• income support, employment support allowance (income-related) or state pension credit and had declared on the claim form, or otherwise in the course of making a claim, that they were looking for work[9]

Jobseeker status could not be retained for longer than three months (or 91 days), which could be spread over a number of different periods (ignoring periods exercising the right to reside as a jobseeker prior to 1 January 2014) unless the jobseeker could provide 'compelling evidence' that they were continuing to look for work and had a genuine chance of being engaged in a job.[10]

Compelling evidence

'Compelling evidence' is not defined in legislation. The Upper Tribunal held that it required no more than meeting the civil standard of proof – ie evidence showing that on the balance of probabilities the jobseeker was continuing to seek employment and had a genuine chance of securing it. All of the circumstances of the case and the quality and weight of the evidence could be taken into account when making the decision, but the standard remained the civil standard of proof.[11]

Genuine prospect of work test

DWP interpreted and applied the Genuine Prospect of Work test restrictively. In order to pass the assessment, EEA jobseekers had to show that they either had an offer of a specific job to start within three months, or that a change of circumstances within the three month period, such as moving location or completing training, would result in a job offer imminently.[12]

The Upper Tribunal held that participation in a government employment scheme (ie a scheme intended to assist people to find work) was relevant evidence to be considered in the genuine prospect of work assessment, and could mean that a claimant who was an active participant would pass the assessment. However, a person participating in such a scheme did remain subject to the assessment.[13]

The Genuine Prospect of Work assessment applied only to those whose only right to reside in the UK was that of a jobseeker or person who had retained worker status because they were involuntarily unemployed and seeking work. People with an alternative right to reside, for example a permanent right based on five years' lawful residence, were not subject to it.

A jobseeker could start a new period of jobseeking if they left the UK for at least a continuous period of 12 months.[14]

A non-EEA national who was the primary carer of (or shared equally in caring for) a dependent British national (a minor or an adult) had a derivative right to reside where the British national would be unable to remain in the EEA territory (including the UK) if their primary carer was required to leave the EEA.[15]

A non-EEA national who acquired a derivative right to reside in these circumstances is commonly referred to as a 'Zambrano' carer.[16]

Eligibility for homelessness assistance of Zambrano carers

From 8 November 2012, a Zambrano carer became ineligible for:

• homelessness assistance and allocations of social housing[17]

• housing benefit and other means-tested benefits[18]

A Zambrano carer who applied for social security assistance before 8 November 2012 was eligible.[19]

There was no transitional protection for Zambrano carers who were entitled to housing benefit or other means-tested benefits before that date, but local housing authorities had the power to provide or secure accommodation at a nil or nominal rent for an eligible Zambrano carer who had no income or savings.[20]

For more information about 'Zambrano' carers and their right to reside in the UK, see Right to reside.

A self-sufficient person had a right to reside in the UK and was in theory eligible for homelessness assistance. However, the very act of applying for homelessness assistance could suggest that a person was not self-sufficient and that therefore they no longer had a right to reside. As a result they were likely be treated as not eligible.

A self-sufficient person was defined as a person who had both:[21]

• sufficient resources not to become a burden on the social assistance system of the UK

• comprehensive sickness insurance cover in the UK

Resources had to be enough to avoid the self-sufficient person and their family members from becoming a burden on UK social assistance. The criteria for qualification as a family member of a self-sufficient person are the same as that for family of workers and self-employed.

Assessment of sufficient resources

Member States were not allowed to set a fixed amount of money which they could regard as sufficient resources, but had to take into account the personal circumstances of each household.[22]

Comprehensive sickness insurance

The requirement to have comprehensive sickness insurance was satisfied where a person had private health insurance.

The UK government had argued that the availability of free National Health Service care was not sufficient.[23] In 2022 the Court of Justice of the European Union ruled that a person who was registered with the NHS met the requirement to have comprehensive sickness insurance.[24]

Possession of the European Health Insurance Card (EHIC) could constitute comprehensive sickness insurance, but only in circumstances where the UK government was able to recoup the costs of health care provided under the NHS from other EU Member States. This only applied where the 'competent state' (ie the Member State responsible for meeting the cost of the person's health care under the terms of the EHIC) was not the UK. This would most likely be the case where an EEA national was in the UK for a relatively short time.[25]

Proportionality of refusing social assistance

An EEA national who had never worked or looked for work in the UK could be refused social assistance on the basis that they were not self-sufficient.[26] The refusal of assistance in this situation (or in other cases where an EEA national had no right to reside) was a proportionate response even without carrying out an individual assessment of the person's situation. Even if one individual claim for assistance would clearly not constitute an unreasonable burden on the UK's resources, the potential accumulation of claims would.[27]

EEA students and their family members who had sufficient resources and who were covered by comprehensive sickness insurance had a right to reside in the UK.

A student was defined as a person who:[28]

• was enrolled on a course at a private or public establishment listed on the UK Border Agency's register of sponsors or at an establishment financed from public funds. This could include vocational training

• had comprehensive sickness insurance

• had given assurance to the Home Office that they had sufficient resources for themself and their family not to become a burden on the social assistance system during their residence in the UK

Level of resources

An EEA student could be treated as having sufficient resources if those were greater than the level of resources at which a UK national would become ineligible for welfare benefits.

However, Member States were not allowed to set a fixed amount of money which they could regard as sufficient resources, but had to take into account the personal circumstances of each household.[29]

Resources had to be enough to avoid students, and their family members, from becoming a burden on the UK.

Family members – definition for students

The definition of family member in relation to a student was restricted to:[30]

• their spouse or civil partner

• children of the student or their spouse or civil partner who were either aged under 21 or dependent on the student or their spouse or civil partner

• an extended family member who had been issued with a EEA family permit, registration certificate or residence card, and continued to meet the conditions for that documentation

Where the student criteria are not all met

Where a student did not fulfil all the elements of the definition of a student, they did not have a right to reside in the UK as their residence was not classed as lawful. One applicant tried to rely on her French dependent niece, a 16 year-old student, to be granted priority need. She argued that her niece had a permanent right to reside in the UK as an EU national who had been legally resident in the country for over five years. However, the Court of Appeal found that as her niece had never had the required comprehensive sickness insurance, she did not lawfully reside in the UK as a student and therefore had not acquired a permanent right to reside in the UK. The niece was not eligible for homelessness assistance in her own right, and her aunt was only owed the restricted case duty.[31]

Similarly, the non-EEA spouse of an EEA student who did not have comprehensive sickness insurance could not obtain a permanent residence card. The courts held that the conditions laid out in art 7(1)(c) of the Citizenship Directive had to be interpreted in a strict and literal way and that entitlement to treatment under the National Health Service alone did not satisfy the Directive's requirement for lawful residency.[32]

Eligibility for housing assistance

A student was not in one of the category of persons from abroad who was treated as eligible for housing assistance as a homeless applicant.[33]

If a student was also working in the UK, they could be eligible for assistance as a worker. However, the work must be effective and genuine, and not marginal and ancillary.

Time spent in the UK as a self-sufficient student on an authorised course of studies while holding comprehensive sickness insurance counted as lawful residence for the purpose of acquiring a permanent right to reside in the UK following a continuous period of five years' residence.